A Berks County trial court recently rejected the claim of property owners that the construction of sewage lagoons adjacent to their homes caused a “de facto” taking of their properties. A de facto taking can occur when a governmental action causes the equivalent of a condemnation of property. We were able to prove, for example, that PennDOT’s actions caused a de facto taking of a planned condominium project. In Arpino v. Pleasant Valley School District, the property owners alleged that “the construction of the lagoons has negatively impacted the value and enjoyment of the properties” “by generating intolerable noises . . . and, during the hottest days of summer, they emit odors that seep into the house with disgusting effect.”

After a hearing was held to consider evidence of the alleged taking, the Court found that a de facto taking has not occurred. The Court first held that the allegations – if true – could state a claim for a de facto taking. However, the Court further found that the property owners did not prove at the hearing that the noise or odors were as bad as they claimed.